Delhi District Court
Mukesh vs State on 13 March, 2024
IN THE COURT OF SHRI ARVIND BANSAL
ADDL. SESSIONS JUDGE-05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
Criminal Revision No. 178/2023
Police Station: M. S. Park
Mukesh
w/o Shri Jaidev Malik
R/o 1449/6D, Gali No. 10,
Durgapuri, Delhi-110093.
....... Revisionist
Vs.
1. The State
...... Respondent
Date of institution : 17.07.2023
Date of reserving order : 05.02.2024
Date of order : 13.03.2024
ORDER
1. Vide this petition, the revisionist has put to challenge two orders, one dated 19.10.2015 and other dated 02.06.2023 of Ld. CMM/Shahdara arising out of DD No. 30B dated 14.04.2015.
2. The facts leading to filing of Kalandara DD No. 30B dated 14.04.2015 and the present revision petition can be adumbrated as below: that revisionist/complainant lodged a complaint against some accused persons resulting in registration of FIR No. 149/2013 u/s 354/509/34 IPC. Matter was investigated and a closure/cancellation report as filed by District Investigation Unit/North East District before the Court of the then Ld. MM on 04.04.2014. In the said cancellation/closure report, a request was also made to prosecute revisionist/complainant for offence u/s 182/211 IPC. Statement of revisionist/complainant was recorded on 15.05.2014 qua this report. Vide order dated 24.07.2014, the Digitally signed Mukesh Vs. State ARVIND by ARVIND BANSAL Page 1 of 12 BANSAL Date: 2024.03.13 16:25:26 +0530 cancellation report was accepted. Later on 09.04.2015, one DD no. 30B was registered at PS M. S. Park on complaint of one Satpal who was accused in FIR No. 149/2013 (supra). It was marked to SI Hukam Singh on 14.04.2015. On the basis of this DD, a Kalandara was prepared by SI Hukam Singh forwarded by SHO, PS M. S. Park and sent to Court. On 19.10.2015, a complaint u/s 195 Cr.P.C was filed in support of Kalandara DD No. 30B for prosecution of revisionist/complaint. Court of the then Ld. CMM, Shahdara took cognizance of the offence and summoned the revisionist/complaint vide impugned order dated 19.10.2015.
After appearance in February 2016, one application u/s 258 Cr.P.C was preferred by revisionist/complainant before Ld. Trial Court on 21.05.2019 and said application was dismissed vide impugned order dated 02.06.2023, and hence, the present revision petition.
3. There is an application u/s 5 of Limitation Act seeking condonation of delay in filing this revision petition as regards impugned order dt. 19.10.2015.
4. Arguments on the application u/s 5 Limitation Act as well as the revision petition heard. Available record including Trial Court Record of DD No. 30B carefully perused and considered.
5. Ld. Counsel for revisionist has challenged the impugned orders on multiple grounds which are as follows:
(a) that pursuant to acceptance of cancellation report, no complaint as mandated by Section 195(1)(b) Cr.P.C. was filed/moved by Court of the then Ld. MM Digitally signed by ARVIND ARVIND BANSAL Mukesh Vs. State BANSAL Date:
2024.03.13 16:25:37 +0530 Page 2 of 12 and as such, proceedings initiated under Section 211 IPC stood vitiated;
(b) that Kalandara having DD no. 30B dated 14.04.2015 was filed on 17.04.2015 in contravention of Section 195(1)(a) Cr.P.C.;
(c) that a complaint under Section 195 Cr.P.C. was filed subsequently and belatedly by SHO PS M. S. Park on 19.10.2015 without any application for condonation of delay and without any locus to file the said complaint;
(d) that impugned order dt. 29.10.2015 taking cognizance of offence under Section 182/211 IPC was passed without considering the statutory conditions of Section 195 Cr.P.C; and
(e) that application under Section 258 Cr.P.C. moved by revisionist was dismissed vide impugned order dt. 02.06.2023 by Ld. CMM/Shahdara without considering the applicable law particularly the provision of Section 210 Cr.P.C., Section 258 Cr.P.C. and Section 195 Cr.P.C.
6. During arguments, Ld. Counsel for revisionist reiterated the aforesaid grounds and pleaded for setting aside the impugned orders. It is also argued that the revisional Court has jurisdiction to condone the delay in filing the petition when a clear illegality is brought on record. It is pressed that a revision petition should not be dismissed on grounds of limitation when clear illegality can be demonstrated. It is emphasized that there was clear violation of mandatory statutory provisions of Section 195(1)(a) & 195 (1)(b) Cr.P.C while filing the Kalandara as also at the time of Digitally signed Mukesh Vs. State by ARVIND Page 3 of 12 ARVIND BANSAL BANSAL Date:
2024.03.13 16:25:45 +0530 taking cognizance of offence and as such, impugned orders deserve to be set aside without going into the technicality of question of limitation.
7. Submissions heard. Record perused.
8. This Court shall first deal with the issue of limitation. Admittedly, there is a delay of about 2820 days (about 07 years and 09 months) in filing the present revision petition against the impugned order dated 19.10.2015 whereby Ld. Trial took cognizance of the offence u/s 182/211 Cr.P.C and ordered issuance of summons to revisionist/complainant as accused.
It is the contention of Ld. Counsel for revisionist that in view of the judgment of Hon'ble Supreme Court in case titled 'Municipal Corporation of Delhi vs. Girdharilal Sapuru', (1981) 2 SCC 758, revision petition should not be rejected as time barred when attention of the Court is drawn to a clear illegality as such dismissal would perpetuate illegality and miscarriage of justice. To support the said contention, Ld. Counsel also relied upon judgment titled 'Ram Swarup vs. Devi Dayal Bhatia', 1986 SCC OnLine Del 256, S. Bhupinder Singh Makkar vs. Smt. Narinder Kaur', 1990 SCC OnLIne Del 63, State vs. Rajeev Bharati, 2015 SCC OnLine Del 8151, Bharpur Singh vs. State of Punjab', 2021 SCC OnLine P&H 2906 and 'Suo-Motu vs. State of Kerala', 2023 SCC OnLine Ker 5729. It is submitted that the Hon'ble High Courts in the aforesaid cases relied upon the judgment of Girdharilal (supra) and observed that revision u/s 397 Cr.P.C should not be dismissed on the ground of limitation when a clear illegality can be demonstrated. Digitally signed by ARVIND ARVIND BANSAL BANSAL Date:
2024.03.13 16:25:55 +0530 Mukesh Vs. State Page 4 of 12
9. This Court has given its anxious consideration to all the aforesaid judgments and has gone through the observations of each Hon'ble Higher Court. It is noted that the catena of judgments cited by Ld. Counsel for revisionist have relied upon the judgment of Hon'ble Supreme Court in Girdharilal case (supra) wherein it was observed as follows:
"It, however, appears that the respondents contended that the revision petition was barred by limitation. Even this contention is founded on a very technical ground that even though the revision petition was filed very much in time the requisite power of attorney of the learned advocate on behalf of the petition was not legally complete and when it was re-submitted the limitation had expired. Without going into the nicety of this too technical contention, we may notice that Section 397 of the CrPC enables the High Court to exercise power of revision suo motu and when the attention of the High Court was drawn to a clear illegality the High Court could not have rejected the petition as time barred thereby perpetuating the illegality and miscarriage of justice. The question whether a discharge order is interlocutory or otherwise need not detain us because it is settled by a decision of this Court that the discharge order terminates the proceedings and, therefore it is revisable under Section 397(1), Cr. PC and
-Section 397(1) in terms confers power of suo motu revision on the High Court, and if the High Court exercises suo motu revision power the same cannot be denied on the ground that there is some limitation prescribed for the exercise of the power because none such is prescribed. If in such a situation the suo motu power is not exercised what a glaring illegality goes unnoticed can be demonstrably established by this case itself. We however, do not propose to say a single word on the merits of the cause because there should not be even a whimper of prejudice to the accused who in view of this judgment would have to face the trial before the learned Magistrate."Digitally signed
ARVIND by ARVIND BANSAL BANSAL Date: 2024.03.13 16:26:05 +0530 Mukesh Vs. State Page 5 of 12
10. In respect of the aforesaid judgment, it is noted that there was a question of delay of about three months in the case of Girdharilal (supra) which arose due to time taken by the concerned counsel for removal of objection in filing the appropriate power of attorney. Similarly, in the case of Ram Swarup (supra) there was a delay of 11½ months which ensued due to the time taken for removal of the objection of filing extra set of the petition. In both these cases, the original petition was filed within the period of limitation. In the case of Bhupinder Singh Makkar (supra), the Hon'ble Court was not dealing with the question of limitation and reference to the case of Girdharilal (supra) was made in the context of non-filing of the certified copy with the revision petition and a technicality arising therefrom. Similarly, a delay of a few months on the part of State/Prosecution was in issue before the Court in the case of Rajeev Bharti (supra). The case of Bharpur Singh (supra), the benefit of condonation of delay in the light of Girdharilal case was granted in the light of an alternative remedy of filing of revision petition before Sessions Court being available to the petitioner. The time period involved in the said case was also around an year of delay. The case of State of Kerala (supra) is no different. In the said case, there was no question of limitation involved, rather the judgment of Girdharilal case was referred to for exercising suo-motu jurisdiction to correct illegality in the interlocutory order.
In the opinion of this Court, the facts and circumstances of the present case are clearly distinguishable from all the aforesaid judgments cited by Ld. Counsel. In the present case, there is a delay of more than 90 months in filing the revision petition. Such an inordinate delay cannot be condoned merely on the submission that the case involved an apparent illegality in the Digitally signed Mukesh Vs. State by ARVIND ARVIND BANSAL Page 6 of 12 BANSAL Date: 2024.03.13 16:26:18 +0530 order of cognizance dated 19.10.2015. It is not the case of revisionist that she did not have knowledge of such alleged illegality in the order since her appearance before the Ld. Trial Court. A bare perusal of the ordersheets of Ld. Trial Court would divulge that after appearance on 04.02.2016, the question of maintainability of the proceedings was raised before Ld. Trial Court on 16.09.2017 for the first time. There is no explanation either in the application u/s 5 Limitation Act or the revision petition for not preferring a revision against the impugned order at the first available opportunity either in the year 2016 or 2017. In the opinion of this Court, revisionist cannot seek refuge of the judgment in Girdharilal case while she herself slept over her right to challenge the impugned order by preferring a revision petition.
11. It is the argument of Ld. Counsel that revisionist filed an application u/s 258 Cr.P.C for stopping of proceedings and consequent discharge before Ld. Trial Court and since the said application was decided lately vide order dated 02.06.2023, there was no opportunity to prefer a revision petition at an earlier stage. In the opinion of this Court, the argument is misconceived. A bare perusal of the Trial Court Record would provide that such an application u/s 258 Cr.P.C was moved only on 21.05.2019 i.e. even after a gap of about two years since the date of first raising the issue of maintainability. In such circumstances, revisionist cannot be permitted to take benefit of her own conduct whereby she waited for 3½ years for moving such an application and took 7½ years for filing revision petition.
It must be understood that rules of limitation are certainly not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek Digitally signed Mukesh Vs. State ARVIND by ARVIND BANSAL Page 7 of 12 BANSAL 16:26:34 Date: 2024.03.13 +0530 their remedy promptly. The idea is that every legal remedy must kept alive for a legislatively fixed period of time (Ref. N. Balakrishanan vs. M. Krishnamurthy, AIR 1998 SC 3222).
12. In respect of law of limitation, Hon'ble Supreme Court in case titled 'Basawaraj vs. Special Land Acquisition Officer', (2013) 14 SCC 81 observed that where a case has been presented in the Court beyond limitation, the applicant has to explain the Court as to what was the 'sufficient cause' which means an adequate and enough reason which prevented him to approach the Court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. In another case titled 'Lingeswaran vs. Thirunagalingam' 2022 LiveLaw (SC) 227, Hon'ble Supreme Court against reiterated that the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation. The Apex Court also observed that when it is found that the delay is not properly explained, the application to condone delay is required to be dismissed.
13. In the opinion of this Court, revisionist has failed to justify the grounds seeking condonation of delay and has further failed to raise any 'sufficient cause' for seeking such a relief. The law cannot help an indolent and as such, no ground to allow the application is made out. The application u/s 5 Limitation Act seeking condonation of delay in filing the present revision petition is, accordingly, dismissed. Digitally signed by ARVIND ARVIND BANSAL BANSAL Date:
2024.03.13 16:26:43 +0530 Mukesh Vs. State Page 8 of 12 The present revision petition also deserves to be dismissed consequent upon dismissal of application seeking condonation of delay, however, this Court also heard the submissions of Ld. Counsel for revisionist on merits and therefore, deems it appropriate to discuss the same as well.
14. It is the argument of Ld. Counsel that since the proceedings of acceptance of cancellation report amounted to judicial proceedings, cognizance of the offence u/s 211 IPC could have been taken only on the complaint of then Ld. MM who accepted the cancellation report. This Court has perusal Sec. 211 IPC as also sec. 195(1)(b) Cr.P.C. In this regard, it is observed that a complaint in writing of the Court or such officer of the Court as authorized by the Court, is mandatory only when the alleged offence (sec. 211 IPC in the present case) is committed in, or in relation any proceedings in any Court. In the opinion of this Court, the acceptance of cancellation report by the concerned Ld. MM certainly amount to judicial proceedings, however, the alleged offence u/s 211 IPC was not committed in or in relation to any judicial proceedings. The lodging of false FIR (as concluded by the investigating agency) with false charge of offence u/s 354/509 IPC with intention to cause injury, in itself may amount to offence u/s 211 IPC. Mere recording of statement of complainant/revisionist by the then Ld. MM regarding her no objection to the cancellation report does not change the nature of offence which stood committed even before making of such statement or acceptance of cancellation report. As such, the argument that there was no complaint by the concerned Ld. MM who accepted the cancellation report, u/s 195(1)
(b) Cr.P.C cannot be accepted.
Digitally signedARVIND by ARVIND BANSAL BANSAL 16:26:52 Date: 2024.03.13 +0530 Mukesh Vs. State Page 9 of 12
15. It is the argument that Kalandra having DD No. 30B dated 14.04.2015 was filed without any complaint u/s 195(1)(a) Cr.P.C and thus, required immediate rejection by the Ld. Trial Court. It is argued that the subsequent complaint u/s 195 Cr.P.C by SHO, PS M.S. Park did not change the nature of Kalandra and could not rectify the defect of filing thereof without complaint u/s 195 Cr.P.C. This Court has considered the argument. It is noted that Sec. 195 Cr.P.C puts a bar on cognizance of the offence without a complaint in terms of the said statutory provision. It is notworthy that Ld. Trial Court did not take cognizance of offence u/s 182/211 IPC on 17.04.2015 when the same was filed. In fact, IO was summoned vide order dated 29.05.2015 to clarify the aspect of sanction u/s 195 Cr.P.C. It was only on filing of complaint u/s 195 Cr.P.C by SHO, PS M.S. Park that the cognizance of offence was actually taken.
It is contended by Ld. Counsel that SHO, PS M.S. Park did not have any locus to file complaint u/s 195 Cr.P.C as the matter was investigated by DIU and not any official of PS M.S. Park. In the opinion of this Court, DIU is only an investigating unit of the district and not a police station within the connotations of criminal law. As such, SHO, PS M.S. Park was within his powers to file an application u/s 195 Cr.P.C as the initial complaint by revisionist/complainant was filed at PS M.S. Park and FIR was also registered in the same police station.
The Ld. Counsel also argued that the complaint u/s 195 Cr.P.C filed by the concerned SHO was beyond the period of limitation and no application seeking condonation of delay was filed alongwith the said complaint. In the opinion of this Court, the question of limitation was never raised by the revisionist before Ld. Trial Court, and secondly, the said question being a mixed question Mukesh Vs. State Digitally signed Page 10 of 12 ARVIND by ARVIND BANSAL BANSAL Date: 2024.03.13 16:27:02 +0530 of law and facts cannot be decided by this Court in exercise of its revisional jurisdiction. The argument cannot, therefore, be considered to challenge the impugned order dated 19.10.2015.
16. It is also contended by Ld. Counsel for revisionist that application u/s 258 Cr.P.C was dismissed by Ld. Trial Court without considering the applicable law particularly sec. 210 Cr.P.C, sec. 258 Cr.P.C and sec. 195 Cr.P.C.
This Court has gone through the impugned order dated 02.06.2023 of Ld. Trial Court dismissing the application of revisionist u/s 258 Cr.P.C. This Court is completely in agreement with the observations of Ld. Trial Court that offence punishable u/s 182 & 211 IPC are triable as summons case and present Kalandra DD No. 30B is to be treated as a complaint u/s 2(d) Cr.P.C. Ld. Trial Court is also correct in observing that sec. 258 Cr.P.C empowers the Magistrate to stop proceedings in cases 'instituted otherwise than on a complaint'. The present proceedings initiated vide Kalandra DD No. 30B read with complaint Sec. 195 Cr.P.C are undoubtedly proceedings on a complaint and as such, sec. 258 Cr.P.C is not applicable to the said proceedings. It must be understood that sec. 258 Cr.P.C while referring to the term 'instituted otherwise than upon complaint', refers to cases instituted on the basis of a final police report as provided u/s 173 Cr.P.C. The cognizance of offence u/s 182/211 IPC against revisionist has been taken on the basis of complaint u/s 195 Cr.P.C and not on the basis of a police report u/s 173 Cr.P.C. As such, sec. 258 Cr.P.C has no application to the proceeding pending before Ld. Trial Court and the application of revisionist/complainant was rightly dismissed.
Digitally signedARVIND by ARVIND BANSAL BANSAL Date: 2024.03.13 16:27:11 +0530 Mukesh Vs. State Page 11 of 12
17. In view of the discussion in preceding paragraphs, there is no apparent illegality or irregularity or incorrectness in the impugned orders of Ld. Trial Court dated 19.10.2015 and 02.06.2023 which appear to have been passed on the basis of correct understanding of the facts and applicable law. Accordingly, the present revision petition is dismissed even on merits. Revision file be consigned to Record Room.
Digitally signedARVIND by ARVIND BANSAL BANSAL Date: 2024.03.13 Dictated & announced in the 16:27:20 +0530 open Court on 13.03.2024.
(ARVIND BANSAL) Addl. Sessions Judge-05 (Shahdara) Karkardooma Courts, Delhi Mukesh Vs. State Page 12 of 12